ACLU Sues City of Dover for Unconstitutional Ordinance

Wilmington, DE (February 8, 2013)—The American Civil Liberties Union of Delaware has filed suit against the City of Dover on behalf of a registered sex offender who is being forced from his home because he lives within 500 feet of a day care center. The suit claims that Dover Code § 70-7 is unconstitutional when applied to offenders sentenced before April 9, 2012 because it amounts to retroactive punishment. The suit also claims that the City of Dover exceeded its power by adopting the law because state law already provides the limitations on where registered sex offenders may live and work.

The City of Dover adopted Dover Code § 70-7 on April 9, 2012 prohibiting registered sex offenders from living within 500 feet of a day care center and then gave all sex offenders living within this parameter one year to vacate their homes. The fine for failing to move is $500 per day.

Residency restrictions for people who must register with the state for a sex offense do not protect children. Studies show that they make a community less safe because they drive registered offenders into the shadows and give a false sense of protection to the public,” said Kathleen MacRae, ACLU of Delaware executive director.

This case highlights the irrational, and frankly stupid, assumptions underlying the Dover ordinance. Not only is this ordinance unconstitutional; it places an unfair burden on individuals who have already paid their debt to society and endangers the Dover community. It should be revoked,” she continued.

The plaintiff in the case, Michael A. Justice, was convicted of 4th degree rape in 2006 for having sexual relations with a woman three months shy of her 18th birthday when he was 39 years old. After serving his prison term, he moved to an apartment in Dover. The ACLU claims that forcing Mr. Justice to move is punitive and therefore unconstitutional because it bars him and others like him from living and working where they choose; it creates an undue financial burden; it applies whether the offense occurred against a child or an adult; it does not consider the level of risk the ex-offender may pose; and it is not rationally related to public safety. The ACLU also claims that the ordinance is invalid because it purports to change the law applicable to registered sex offenders that has been enacted by the Delaware General Assembly.

The suit asks the court to prevent Dover Code § 70-7 from being enforced and to declare the code provision unconstitutional.